Case 17 Distasteful Offensive Definition Scab Company Southwestern Bell Telephone Company Q31002427

Case 17:  The Distasteful andOffensive Definition of a “Scab”

Company:      SouthwesternBell Telephone Company, Houston, Texas

Union:            CommunicationsWorkers of America, Local No. 12222

Background

On a Monday morning in early September 1984, Jan Betheda[1], anequipment technician, reported to two of her supervisors that therewas a “distasteful and offensive” memo-random on two union bulletinboards in the plant and office complex of the company. Thesupervisors, Art Laclede and Debbie Lynkirk, investigated anddiscovered on both union bulletin boards a printed memorandumentitled, “Jack London’s Definition of a Scab.”[2]In pertinentpart, the memorandum included the following.

                        JACKLONDON’S DEFINITION OF A SCAB

After God had finished the rattlesnake, the toad, and thevampire, he had some awful substance left with which he made aSCAB. A SCAB is a two-legged animal with a corkscrew soul, awater-logged brain, and a combination backbone made of jelly andglue.  Where others have hearts, he carries a tumor ofrotten principles.

            Whena SCAB comes down the street, men turn their backs and angels weepin Heaven, and the devil shuts the gates of Hell to keep himout.  No man has the right to SCAB, so long as there is apool of water deep enough to drown his body in, or a rope longenough to hang his carcass with.  Judas Iscariot was agentleman … compared with a SCAB; for betraying his master, he hadthe character to hang himself – a SCAB hasn’t.

            Esausold his birthright for a mess of pottage, Judas Iscariot sold hisSavior for thirty pieces of silver.  Benedict Arnold soldhis country for a promise of a commission in the British Army. Themodern strikebreaker sells his birthright, his country, his wife,his children and his fellow men for an unfulfilled promise from hisemployer, trust, or corporation.

            Esauwas a traitor to himself.  Judas Iscariot was a traitorto his God.  Benedict Arnold was a traitor to hiscountry.

            Astrikebreaker is a traitor to himself, a traitor to his God, atraitor to his country, a traitor to his family, and a traitor tohis class.

            THEREIS NOTHING LOWER THAN A SCAB.

After discussing their finding with the company’s director ofhuman resources management, Laclede and Lynkirk removed the twoidentical memoranda from the union’s bulletinboards.  They then informed all employees in severalmeetings of their actions.  They further told employeesthat any reposting of this “Definition of a Scab” memorandum wasprohibited, and that any individuals found doing so would besubject to discipline, including suspension.

            Shortlythereafter, the union filed unfair labor practice charges with theNLRB, alleging that the company had violated Section 7 and Section8(a)(1) of the LMRA by removing the memorandum from the union’sbulletin boards and by threatening disciplinary action against theemployees.

Position of the Union

The union claimed that there had never been any company rulesconcerning what could or could not be posted on union bulletinboards located on company premises.  The union hadnegotiated with the company for the right to have these bulletinboards, and there were no specific negotiated restrictions placedon this privilege.

            Inthe union’s view, the “Definition of a Scab” memorandum was anexpression of opinion that was not disruptive to employee workperformance or discipline. Just because someone considered itdistasteful or offensive did not justify the company’s actions andthreats to discipline employees.  There had been no workdisruption; even though employees were observed in groupsdiscussing the memorandum, this was not unusual or threatening toanyone. Therefore, the company had violated Sections 7 and 8(a)(1)of the Act by interfering with the union’s protected rights and byattempting to coerce and restrain the union and the employees intheir expression of those rights.  The union requestedthat the company be ordered to cease and desist in this and anyother actions that would tend to interfere with the union’sstatutory rights and negotiated privileges.

Position of the Company

The company pointed out that the posting of the “Definition of aScab” memorandum had occurred only several days following the endof a several weeks’ strike during which some one-third to one-halfof the employees had crossed the union’s picket lines in order towork.  In the company’s view, the memorandum was aimedprimarily at these employees, who had exercised their personalfreedom of choice in a difficult situation.  Not only wasthe memorandum offensive to them, but it was likely to contributeto further animosity, internal dissension, and strife that couldlead to wholesale disruptions in employee discipline and workperformance.  An employer cannot afford simply to waituntil a breakdown in discipline occurs.  In thissituation, company management had decided that, for the sake ofavoiding further deterioration in workplace harmony and employeemorale, the “provocative and inflammatory” memorandum should beremoved.  The company did not interfere with any of theunion’s protected rights in this matter when it removed thisoffensive and.

            Insupport of its position, the company cited a Supreme Court decisionthat employers have an “undisputed right … to maintain disciplinein their establishments,” which under some circumstances may limitthe exercise of employee rights guaranteed by Section 7 (RepublicAviation Corp. v. NLRB, 324 U.S 793, 797-798, 16 LRRM 620[1945]).

            Similarly,the NLRB has found “special circumstances” can exist that wouldjustify an employer’s ban on otherwise protected activity in theworkplace if “objective evidence supports the employer’s beliefthat the ban was necessary to maintain decorum and discipline amongits employees” [Midstate Telephone Corp., 262 NLRB 1291 – 1292, 110LRRM 1533 (1982)].  In the company’s view, this was a“special circumstance’ that fully justified the company’sposition.  The unfair labor practice charges should bedismissed.

QUESTION 1

1.    Which of the following led to thedispute in this case?

QUESTION 2

1.     

Which of the following arguments werenot made by the Union to uphold thecomplaint against Management?

QUESTION 3

1.     

Which of the following were arguments made by Management indefending its actions?

QUESTION 4

1.     

What are the legal concepts that apply in this case?

QUESTION 5

1.     

Per the readings for Module 3 (see Labor Law in BriefHandout), Management can ban union literature if it is

QUESTION 6

1.     

How do you think the NLRB ruled in this case?

[1]The names of all individuals are disguised.

[2]Jack London (1876-1916) was an American writer andadventurer.  He wrote a number of novels and adventurebooks and also wrote several books that dealt with poverty andsocial injustice.  The source of the “Definition of aScab” attributed to Jack London was not identified on the postedmemorandum.